When a Defendant has a default Judgment entered into against them, it is not the end. The Defendant can apply to the Court under CPR 13 if the can demonstrate they have a real prospect of success or can establish some other good reason why they should defend the claim or set it aside. In additions there needs to be consideration regarding the promptness of the application.
One may reasonably believe that this is all the Court needs to consider. It seems that the ability to set aside default Judgment has its own set self-contained rules.
I have seen applications to set aside Judgment based solely on this but I’ve also seen applications referred to the Denton Test. In July of this year, the Court of Appeal’s decision of FXF v English Karate Federation Ltd & Another [2023] EWCA Civ 891 provided clarification as to how the Denton test applies.
Facts of the case
The case concerns a claim by an individual who claims that her karate instructor has sexually abused her over a long period of time, causing her to suffer personal injury. It was alleged that the first Defendant (the licensing authority) and the second Defendant (the karate association) were liable.
There was some difficulty because the sole representative of the second Defendant lived in Thailand. There was a consent to a stay of proceedings whilst the pre-action protocol was complied with.
The Defendants had failed to file a Defence so the Claimant obtain default Judgment. Naturally the Defendants applied to set aside the default Judgment. They argued there was an ‘arguable and sophisticated’ defence to the allegation of vicarious liability.
The Master who considered the application determined the date the Defence was due was 21st July 2020. The Claimant sought its default Judgment on the 1st September 2020, a notice of acting was filed on 9th September 2020, default Judgment was granted on 22nd September 2020 and the Claimant’s solicitors advised the Defendants’ Solicitors on the 23rd October 2020 about the default Judgment. The Defendants’ application to set aside default Judgment was made on 17th November 2020.
The application was not heard until December 2021 (sigh).
The application hearing
The Master appeared critical of the Defendants for making the application late and had no drafted Defence before the Court. They argued there was an indemnity issue on top of difficulties in obtaining instruction from Thailand.
There appeared to be consideration of the delay not withstanding the merits. The Claimant argued that the Defendants were in essence making a relief from sanction application and when considering the Denton test, it should fail. In particular the Claimant argued the merits of the claim were ought weighed by the delay.
The Master granted the application, stating that the delay was unreasonable notwithstanding the actual default of not filing a Defence occurred in July 2020 but concluded that despite the delay with no good reason, the merits of the claim justified the setting aside of default Judgment.
The Claimant appealed and the High Court referred the case to the Court of Appeal.
The appeal
The Claimant had argued that the Denton test did apply but the Master had failed to apply the test (and if he did, he would not have allowed the application to set aside default Judgment). The Claimant relied on the case of Gentry v Miller & Anor [2016] EWCA Civ 141 to argue that it was already law that the Denton test applied to applications to set aside default Judgment. This was of interest because Gentry was heard by the Master of the Rolls who was then a Lord Justice.
The Defendant argued that in Gentry the parties had agreed that the Denton test applying and that it was wrong because the rule for setting aside default Judgment was a unique procedural category and is not an application under CPR 3..9. Further it was argued that CPR 13.3 was broad and unconstrained, it took in all factors under the overriding objective including the ‘ethos’ of the Denton test, even thought the test itself did not apply.
The conclusion was that not only did the Denton Test apply, the Master was deemed to had identified the Denton test in his Judgment and therefore must have applied the test in coming to his conclusion. It was quite interesting to watch the appeal because the Master of the Rolls referred to his experience of appearing before Masters and believe it would be wrong to essentially tell them to spell out the test when they clearly knew and indicated the test applied.
It is of interest that in agreeing with the Master of the Rolls, Birss LJ said the following:-
In this case there is a real contest between two views of how applications to set aside default judgment are to be decided. The fact that the respondent’s submission includes an acknowledgement that what is described as the“ethos” of Denton still comes into play as part of the overriding objective does not mean there is nothing at stake. In dispute is whether an application under r13.3 is or is not an application for relief from sanction, and the consequences which flow from that. That question is fundamental to the relevance of Denton itself in this context. Whatever may have been the status in terms of binding precedent of previous authorities (and just to be clear at the risk of repetition I agree with what my lord the Master of the Rolls has said about them) even if previous binding authority such as Gentry had not already decided the issue, in my judgment looking at the matter afresh based on the rules in the form they have stood since 2014 when Denton was decided, an application to set aside a default judgment under r13.3 is an application for relief from sanction to which r3.9 also applies. Therefore the right approach to deciding these applications is the one described by the Master of the Rolls above, applying Denton once the two specific matters in r13.3 have been considered.
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Commentary
Ultimately, although the appeal was unsuccessful, it will ensure going forward the factors in CPR 13.3 are considered and then moves to the Denton test.
It doesn’t change the fact that an application under CPR 13.3 is unique just because the Denton test applies. For example, a default or failure in a CPR 13.3 lays solely on the Defendant as per Mullock v Price (t/a the Elms Hotel Restaurant) [2009] EWCA Civ 1222 compared with Gladwin v Bogescu [2017] EWHC 1287 (QB) where the High Court determined that a default of a Solicitor cannot be distinguished from the party it represents.
Submissions will no doubt, from now on, address the factors in CPR 13.3 as required and then address why default Judgment should be set aside by way of the Denton Test.
N.B – the photo of the post is me. Although my flexibility was always so poor, it looks like I am kicking high but that’s only due to perspective.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.